7 advisory committee's note. While it is true that FED. R. CIV. P. 7(d) has been strictly construed against striking surplusage, United States v. Jordan, 200 U.S. App. D.C. 64, 626 F.2d 928, 931 n.1 (D.C. Cir. 1980), it is also true that the challenged paragraphs do allege facts which implicate the protections of the First Amendment. In light of this consideration, as well as of the fact that the indictment contains a multitude of allegations supporting the conspiracy charge, the Court will grant defendant's motion to strike paragraphs 17, 20v, 20w, and 20x of the indictment. However, if it appears at trial that the stricken allegations are relevant to other than First Amendment activities, the Court may permit the government to present evidence on such matters.
Motion to Sever
Oakar and DeMio both argue that Counts Four through Seven should be severed from Count Three for purposes of trial.
Where multiple defendants are involved, FED. R. CRIM. P. 8(b) governs both joinder of offenses and joinder of defendants. United States v. Jackson, 183 U.S. App. D.C. 270, 562 F.2d 789, 793 (D.C. Cir. 1977). In the case of multiple defendants, multiple offenses may be joined if all the offenses charged were part of the same series of acts or transactions. 562 F.2d at 794; United States v. Perry, 235 U.S. App. D.C. 283, 731 F.2d 985, 990 (D.C. Cir. 1984).
As noted, Count Three charges Oakar with making a false statement in October 1992 to an FBI agent in which she allegedly told him that she had issued three stop payment orders for checks drawn on her House Bank account. Counts Four through Seven allege violations in connection with Oakar's 1992 re-election committee's campaign finance disclosure reports.
While the government has failed adequately to address this issue in that its arguments touch only upon the relationship between Counts One, Two, and Three, it is evident from the indictment and the various filings that the allegations in Counts Three through Seven constitute a related series of transactions. The alleged activities are all part of an alleged scheme to move money around in order to avoid the requirements of the Federal Election Campaign Act, and to conceal the alleged wrongdoings.
Defendants further contend that even if joinder is permissible under FED. R. CRIM. P. 8(b), the Court should grant separate trials under FED. R. CRIM. P. 14. Under Rule 14, a defendant seeking severance must show that joinder will be so manifestly prejudicial that he would not receive a fair trial. United States v. Treadwell, 566 F. Supp. 80, 86 (D.D.C. 1983).
The defendants have failed to meet their burden in this regard. Oakar claims that she will be prejudiced by a joint trial on all charges because as to each count intent will be the critical issue. She is concerned that if the jury finds the requisite intent on one count, it will infer the requisite intent for the other counts. This could be a concern in any case, but proper instructions to the jury will significantly eliminate any such prejudice. DeMio has not presented any arguments as to how he will be prejudiced.
In sum, Oakar and DeMio have failed to show that a joint trial will in effect deprive either of them of a fair trial. The Court will not sever Counts Four through Seven from Count Three.
In addition to adopting several of Oakar's arguments for dismissal of Count Four of the indictment (see above), DeMio raises additional points on his own.
A. DeMio contends that Count Four fails to charge the mens rea sufficient to support a conspiracy charge.
To be sufficient, an indictment must (1) contain the elements of the offense charged and inform the accused of the charge against which he must be prepared to defend, and (2) enable the accused to plead former acquittal or conviction under the indictment as a bar to later prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974); see United States v. Recognition Equip. Inc., 711 F. Supp. 1, 4 (D.D.C. 1989); United States v. Whitehorn, 710 F. Supp. 803, 817 (D.D.C.), rev'd on other grounds, 281 U.S. App. D.C. 209, 888 F.2d 1406 (D.C. Cir. 1989). The indictment states that defendant conspired to "willfully make and caused to be made, a false statement," in that he caused a report to be filed in which false statements were made. Thus, the government has adequately placed defendant on notice that he will have to defend against the charge that he willfully caused another to file the report and thus to make a false statement.
B. DeMio also contends that none of the co-conspirators identified in the indictment was under a duty to report to the FEC, and thus there can be no conspiracy because none of his co-conspirators can be guilty of the underlying offense.
The indictment alleges that DeMio conspired with Oakar and other unnamed individuals to defraud the United States and to cause false statements to be filed with the FEC. A conspiracy prosecution may proceed even where the alleged co-conspirators are immune from prosecution. United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir. 1982). It is not necessary that any co-conspirator be indicted or found guilty. United States v. Dean, 59 F.3d 1479, 1490 n.19 (5th Cir. 1995), cert. denied, 133 L. Ed. 2d 742, 116 S. Ct. 794 (1996); see United States v. Dakins, 277 U.S. App. D.C. 91, 872 F.2d 1061, 1065 (D.C. Cir.) (conspiracy conviction upheld despite government's dismissal of charges against all co-conspirators), cert. denied, 493 U.S. 966, 107 L. Ed. 2d 375, 110 S. Ct. 410 (1989). Furthermore, a conspiracy is committed once an agreement is reached and an overt act is completed, regardless of whether the crime agreed on is committed. United States v. Feola, 420 U.S. 671, 694, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975). On this basis, the Court will not dismiss Count Four.
In a similar vein, DeMio argues that certain acts alleged in the indictment to be overt acts in furtherance of the conspiracy are not in themselves illegal, and argues that the indictment, as it relates to legal conduct, must be dismissed. Even an innocent act may satisfy the overt act requirement of conspiracy, provided that the act furthers the purpose of the conspiracy. Iannelli v. United States, 420 U.S. at 785 n.17; Whitehorn, 710 F. Supp. at 841-42.
C. DeMio next argues that the indictment fails to allege the precise time at which he allegedly participated in this conspiracy. In testing the sufficiency of the indictment, the precise time and date are ordinarily not considered to be material. United States v. Antonelli, 439 F.2d 1068, 1070 (1st Cir. 1971) (per curiam); see United States v. Covington, 411 F.2d 1087, 1088-89 (4th Cir. 1969) (no material and prejudicial variance where the indictment alleged a date in December, but the facts at trial showed a date in July as the date on which the criminal act was committed). If the time and date are not material elements of the crime, and if the accused was not tried for another similar crime (such that he will plead former acquittal or conviction), precise dates need not be alleged. See United States v. Perez, 67 F.3d 1371, 1376-77 (9th Cir. 1995), reh'g granted, 77 F.3d 1210, 1996 WL 118454 (9th Cir. 1996); Covington, 411 F.2d at 1089.
The indictment alleges that the criminal acts were committed while DeMio was working for the Oakar campaign from April until November 1992, and into January 1993. In addition, paragraph 20 provides specific dates for certain alleged overt acts. In short, the indictment is not fatally broad for failing to allege the time with more particularity. See Perez, 67 F.3d at 1377. Furthermore, the government has made discovery material available to DeMio which will provide him with more specific information about the alleged acts. Thus, DeMio has sufficient notice of the charged offense to prepare to defend himself. See United States v. Butler, 262 U.S. App. D.C. 129, 822 F.2d 1191, 1193-94 (D.C. Cir. 1987).
D. DeMio maintains that the term "defraud" in section 1001 should be narrowly construed
and that because his conduct is covered by the more specific provisions of Federal Election Campaign Act ("FECA"), the government must proceed under that provision rather than the more general section 1001. He also argues that the more specific provisions of FECA repealed by implication the more general provision of section 1001.
Arguments similar to these have been rejected by the Fifth Circuit:
[The argument that defendants should have been prosecuted under FECA rather than Title 18] is meritless. It is well settled that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. The only exception arises where Congress clearly intended that one statute supplant another; the fact that one statute is more specific than the other is not sufficient. Nor does the fact that one statute prescribes a felony and the other prescribes a misdemeanor affect the prosecutor's ability to choose among statutes.